Summerlin v. GEORGIA PINES COMMUNITY SERV.

• Decision Date: 01 March 2010
• Docket Number: No. S09G0980.,S09G0980.
• Citation: 690 S.E.2d 401
• Parties: SUMMERLIN et al. v. GEORGIA PINES COMMUNITY SERVICE BOARD.
• Court: Georgia Supreme Court

690 S.E.2d 401

SUMMERLIN et al. v. GEORGIA PINES COMMUNITY SERVICE BOARD.

No. S09G0980.

Supreme Court of Georgia.

March 1, 2010.

Conley Griggs, Cale Conley, Atlanta, C. Frederick Overby, Columbus, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Jennifer L. Dalton, Loretta L. Pinkston, Senior Assistant Attorneys General, for appellee.

THOMPSON, Justice.

Appellant Marilyn Summerlin, in her capacity as the mother of 18-year-old George Summerlin and the administratrix of his estate, filed a wrongful death action against Georgia Pines Community Service Board (the board), for the wrongful death of her son. At the time of his death, George was a patient at Georgia Pines, a residential facility for the care and treatment of individuals with mental illness, mental retardation, and addiction. Summerlin alleges in her complaint that Carlos Hernandez and Charles Whiddon, health care workers working at Georgia Pines pursuant to the board's use of an outside staffing company, negligently cared for her son and that their negligence caused his death. Summerlin also asserts that Hernandez and Whiddon were employees of the board, thus rendering the board liable for their negligent acts and omissions. After filing its answer, the board moved to dismiss the complaint based on sovereign immunity, claiming that under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., immunity is waived only for the acts of "state employees" and that Hernandez and Whiddon were borrowed servants, not employees of the state. The trial court denied the motion and the Court of Appeals reversed, holding that borrowed servants are not state employees for purposes of the Georgia Tort Claims Act. Georgia Pines Community Svc. Bd. v. Summerlin, 296 Ga.App. 32, 36-38, 673 S.E.2d 582 (2009). We granted Summerlin's petition for certiorari to the Court of Appeals to consider what constitutes an "employee" as that term is used in OCGA § 50-21-22(7), and to determine the scope of the Act's waiver of sovereign immunity.

1. OCGA § 50-21-23(a) of the Georgia Tort Claims Act waives the sovereign immunity of the state for torts committed by state officers or employees acting within the scope of their official duties or employment, and provides that the state "shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances," subject to the exceptions and limitations set forth in the Act. There is no dispute here that the board is a state agency for which sovereign immunity has been waived and that as a state agency it is liable for the negligent acts of its employees. Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715(1), 545 S.E.2d 875 (2001); OCGA § 50-21-23(a). The question in this case is whether Hernandez and Whiddon, as alleged borrowed servants, come within the definition of a "state employee" so as to render the board liable for their negligence.

2. OCGA § 50-21-22(7) defines a "state officer or employee" in pertinent part as

an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state.

Thus, as pertinent to this appeal,¹ the Act defines a "state employee" as an "employee" of the state.² This tautological definition provides no specific or detailed definition of who is an "employee" as contemplated in the Act. In the absence of such a definition, we must look diligently for the intention of the General Assembly. OCGA § 1-3-1(a).

The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. Higdon v. City of Senoia, 273 Ga. 83, 86, 538 S.E.2d 39 (2000). The meaning and effect of a statute "are to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts." Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9, 178 S.E.2d 868 (1970). When the General Assembly enacted OCGA § 50-21-22(7), it was aware of the common law definition of the term "employee" as well as established jurisprudence holding that borrowed servants are employees of the borrowing employer. See Six Flags Over Georgia v. Hill, 247 Ga. 375(1), 276 S.E.2d 572 (1981) (discussing borrowed servant rule); Brown v. Smith & Kelly, 86 Ga. 274, 276-277, 12 S.E. 411 (1890) (same); Underwood v. Burt, 185 Ga.App. 381, 382, 364 S.E.2d 100 (1987) (borrowed servant is, at least temporarily, actual employee of borrowing employer). See also 27 Am. Jur. 2d Employment Relationship § 377 (borrowed servant rule); Restatement Second, Agency, § 227 ("A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services"); Black's Law Dictionary (6th ed.) (defining "employee" in part as "a person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed"). By electing not to include a separate definition of the term "employee" within the Tort Claims Act, we conclude the General Assembly intended courts to apply the legal definition of that term as developed under common law and our existing jurisprudence. Accordingly, we hold that encompassed within OCGA § 50-21-23(a)'s waiver of immunity for all "state employees acting within the scope of their official duties" is a concomitant specific waiver of immunity for torts committed by borrowed servants acting within the scope of their official duties on behalf of the state.

Construing the statute as a whole confirms this interpretation. The tautological language in the first part of OCGA § 50-21-22(7) stands in stark contrast to the statute's subsequent language specifically identifying additional categories of persons to be included within the statute's waiver of immunity. See OCGA § 50-21-22(7) (providing that the term "state officer or employee" shall also include, inter alia, certain board members, commissioners, volunteers, health care providers, and foster parents). Subsequent language also makes clear the General Assembly's intent to exclude certain individuals and entities from the definition of a "state employee or officer" by expressly excluding from that definition independent contractors, corporations, private firms, companies, trusts, partnerships, associations or other such private entities. Id. Had the General Assembly intended to attribute a narrower or more specific meaning to the term "employee" so as to exclude borrowed servants, it could have done so.

The Court of Appeals determined that the General Assembly must have intended to...